70 F.

3d 110

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

opinions may be cited only in related cases.
Jerome E. CASSELL, Plaintiff, Appellant,
v.
Barry OSBORNE, etc., et al., Defendants, Appellees.
No. 95-1761.

United States Court of Appeals, First Circuit.

Nov. 9, 1995.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE [Hon. Paul J. Barbadoro, U.S.
District Judge]
Jerome E. Cassell on Motion for Summary Disposition pro se.
D.N.H.
AFFIRMED.
Before SELYA, CYR and STAHL, Circuit Judges.
PER CURIAM.

We have before us appellant Cassell's "Motion to Compel Enforcement and

Compliance," which we construe as requesting relief from briefing
requirements, and a summary disposition of the appeal.

Cassell was convicted in a New Hampshire state court of felonious sexual

assault. While this criminal conviction was pending on direct appeal, he filed
several actions in federal district court under 42 U.S.C. Sec. 1983, challenging
the validity of the conviction and seeking equitable relief and damages. Three
of the suits were the subject of an opinion issued by this court in April, 1994.
Cassell v. Osborn, No. 93-1557, etc., Slip op. (1st Cir. Apr. 26, 1994). There
we affirmed the district court's dismissal of most of Cassell's claims, but
vacated those dismissals which were arguably susceptible of being raised as an

estoppel in the state proceedings. The latter claims were remanded for
reconsideration as to whether they should be dismissed or stayed pending the
conclusion of the state appeal. Id. at 13. The district court decided to stay the
claims.
3

Pursuant to the Supreme Court's intervening decision in Heck v. Humphrey,

114 S.Ct. 2364 (1994), the district court later granted a motion by defendants to
dismiss the claims. In Heck, the Court resolved a conflict among the circuits by
ruling that "a Sec. 1983 cause of action for damages attributable to an
unconstitutional conviction does not accrue until the conviction ... has been
invalidated." Heck, 114 S.Ct. at 2373 (emphasis added); see also GuzmanRivera v. Rivera-Cruz, 29 F.3d 3, 5 (1st Cir.1994).

Appellant is mistaken in his belief that a dismissal under Heck violates this
court's earlier mandate. This dismissal will not prejudice the resolution of any
issue pending before the state's appellate court. It means only that his Sec. 1983
suit is premature. As we explained in response to another, similar appeal by
Cassell, the dismissal also "does not prevent him from later filing a proper and
timely complaint for damages should he first succeed in having his conviction
reversed on direct appeal, expunged, or otherwise declared invalid by a tribunal
authorized to make such a determination." Cassell v. Ober, No. 94-1796, slip
op. at 2 (1st Cir. Oct. 5, 1994) (citing Guzman-Rivera, 29 F.3d at 5).

Accordingly, we grant appellant's motion insofar as it seeks relief from the

briefing schedule, deny his motion for "enforcement," and summarily affirm
the judgment below. See Loc.R. 27.1. Cassell's appellate motions labeled
"Petition for Habeas Corpus Ad Testificandum," and "Motion to Introduce
Evidence," are dismissed without prejudice to consideration of the same
contentions and issues raised in his separately docketed appeal, Cassell v. New
Hampshire, (Appeal no. 95-2158).